ELR Citation: ELR 20293
No(s). 57949-1 (Wash. Sep 10, 1992)

The court holds that the state of Washington's numeric water quality standard for dioxin discharge is invalid, because the state Department of Ecology failed to follow rulemaking procedures in adopting it. The court first holds that the pulp and paper mill operators, which were challenging the standard, were not required to raise their challenge before the Pollution Control Hearings Board prior to seeking relief in superior court, because the state's Administrative Procedure Act (APA) excepts from the doctrine of exhaustion of administrative remedies those actions that challenge the validity of a rule that threatens to impair immediately a party's legal rights or privileges. The court next holds that the standard is "of general applicability" and constitutes a "rule" under the state APA. Thus, because the Department failed to follow rulemaking procedures in adopting the standard, it is invalid. The court does not address the Department's argument that even if the standard is a rule, it could be developed through adjudicative proceedings rather than through rulemaking proceedings, because this issue was not raised at the trial level.

Counsel for Appellants
James K. Pharris, Ass't Attorney General
Attorney General's Office
P.O. Box 40113, Olympia WA 98504
(206) 753-4964

Counsel for Respondents
John W. Phillips
Heller, Ehrman, White & McAuliffe
6100 Columbia Ctr., 701 5th Ave., Seattle WA 98104
(206) 227-0900

Amicus Curiae
Victor M. Sher
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340